St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1887-11-03

| OF the amendment were not intended 10 llullI
| the powers of the state government respect
to their own citizens, put to operate on the
national government alone, was decided more
| than half century ago, and that decision
has been steadily adhered to since. Barron
vs. Baltimore, z Peters 243, PAY; Livingston
vs. Moore, Fox VS.. Ohio, How.
1t is contended, however, in argument that
though originally the first ten amendments
were adopted as limitations on federal power,
yet in so far as they secure aud recognize
fundamental rights-common rights of the
man-they make them privileges and I'M
munities of the man as citizen OF the nlteo
States, and cannot now be abridged by state
under the fourteenth amendment In other
words, while the ten amendments as limita-
tons on power only apply to the federal gov
eminent and not to the states, yet in so FAR
as they declare or recognize rights of persons,
these rights are theirs as citizens of the
United States, and the fourteenth amendment
as to such rights limits state power as the ten
amendments had limited federal power.
tits also contended that the provision OF the
fourteenth amendment which declares that
no state shall deprive any person OF life, I'D
erty or property without due process of law,
implies that every person charged with crime
in state shall be entitled TO trial by an i'm
partial jury and shall not be compelled TO
testify against himself The objections are
in brief:
First-That statute of the state as con-
strued by the court deprived the petitioners
of a trial by impartial jury, and
Second-That Spies was compelled to give
evidence against himself.
Before considering whether the constitu-
ton of the United States has the effect which
is claimed, ii is proper to inquire whether
the federal questions relied on in fact arise
on the face of this record. One statute to
which objectioni is made was approved March
u, 1874, and has been in force since July
OF that year. The complaint is that
The Trial Court
acting under this statute and in accordance
with its requirements compelled the petit
TONERS against their will to submit to trial
by jury that was not impartial, and thus de-
prived them of one of the fundamental rights
which they had as citizens of the United
States under the national constitution, and if
the sentence of the court is carried into exc
cution they will be deprived of their lives
without due process of law.
In Hoyt VS.. Utah, 120 L. s., 439, it was de-
cided by this court that when a challenge by
defendant a criminal action to juror for
bias, actual or implied. is disallowed and the
juror is thereupon peremptorily challenged
by the defendant and excused, and an impair
tial and competent juror is obtained in his
place, no injury is done to the defendant; if,
until the jury is completed. he has other per-
emptory challenges which he can use; and
so in Hayes VS.. Missouri, 100 Z. s., II. it was
said the right to challenge was the right to re-
ject. not to select juror. If from those who
remain an impartial jury is obtained the con-
stitutional right OF the accused is main
tanned. OF the correctness of these rulings we
entertain no doubt. We are therefore con-
fined in this case to the rulings on the chal-
lenges to the jurors who actually sat at the
trial. Of these there were but two. Theodore
penker, the third juror who was sworn, and
H. T. Sanford. the last who was called and
sworn, after all the peremptory challenges of
the defendants had been exhausted. At the
trial the court construed the statute to mean
that although juror called as juryman
may have formed an opinion, based upon ru-
cfof
expressed no opinion as to the truth of the
newspaper statement, he is
Still Qualified as Juror
if he states that he can fairly and impartially
render verdict thereon in accordance with
law and the evidence, and the court shall be
satisfied of the truth of such statement 1t is
not a test question whether juror will have
the opinion which he has formed from news
papers changed by the evidence, butwhether
his verdict will be based only upon the ac-
count which may here be given by a witness
under oath. Interpreted in this way the
statute is not materially different from that
of the territory Of Utah, which had under
consideration in Hoptvs. Utah, supra, and to
which we then gave effect, as that: was ter
ritorial statute passed by territorial legis-
lature for the government OF the territory
over which the United States had exclusive
jurisdiction, it came directly within the op-
Grafton of article of the amendments,
which guaranteed to Hopt trial by an i'm
phIllhl JURY lhCUSlCT Vs. hcIuy IL uOMdIQs
437, 1870. No one at that time suggested
doubt of the constitutionality of the statute,
and it was regarded both in the territorial
courts and here as furnishing the proper rule
to be observed by territorial court in EN-,
paneling an impartial jury i'll a criminal
case. A similar statute was enacted i'll
New York, May 4, 1872, acts of 1872, c.
AIS. 9 New York state at large, second
edition 3z3; in Michigan, April ID, 1873.
acts of 1873, 1872, act III Howell; statute of
1864 and also in Nebraska, company statute
Nebraska 1876, 63S3 criminal code, p. 40S.
Without pursuing this subject further it is
sufficient to say that we agree entirely with
the supreme court of Illinois in the opinion
that the statute on its face as construed by
the trial court is not repugnant to section
of article 2 of the constitution of that state,
which guarantees to the accused party in
every criminal prosecution speedy trial by
an impartial jury of the county or district in
which the Offense is alleged to have been
committed As this is substantially the pro-
vision of the constitution of the United
States on which the petitioners now rely. it
follows that even if their position as to the
operation and effect of that constitution is
correct the statute is not open to the objec-
ton which is made against it.
We proceed then to consideration of the
grounds of challenge to the jurors. Denker
and Sanford, to see if the actual administra-
ton of the rule of the statute by the court of
the rights of the defendants under the con-
stitution of the United States were in any
way lDdlIcu Int COuIl lliSI gives S&lIdCtS
from the examination of Denker by the de-
Tense and says that he was
Challenged for Cause
by the defendants, but before any decision
was made thereon he was questioned by the
court, and the courts examination is ap-
pended. The court, it continues, thereupon
overruled the challenge, but before the juror
was accepted and sworn he was further ex-
amined by counsel for the defendants. CThis
examination is also printed from the record.l
The court then say that the examination of
the Juror by counsel for the defendants closed
ana he was examined by the attorney for the
state and citations are given from the ques-
tons and answers in this examination. The
opinion continues: At the close of the exam
ination neither party challenged the juror
sworn. When this occurred it is not denied
the defendants were still entitled to 143 per-
emptOry challenges, or about that number.
When the juror Sanford was called he was
first examined by counsel for the defendants.
CThe examination is here quoted) At the
close of this examination on the part of the
defendants, the juror was challenged on their
behalf for cause, and the attorney for the
state, after it was aScel tanned that all the per
emptory challenges of the defendants had
been exhausted, took up the examination of
the juror. CThe result of this examination is
given, as is the ruling of the court denying
the challenge to override for cause, and stat
ing that, as the peremptory challenges of the
defense are exhausted, Sanford is a juror to
try the case) So far as the defendants are
concerned, this was accepted the court says,
as a true statement Of the then condition of
the case, and after some further examination
of the Juror which contained nothing of i'm
portance in connection with the present in
quiry no peremptory challenge having been
interposed by the state.
Sanford Was Sworn
as Juror and the panel was thus completed.
This. so far as we have been advised presents
all that there is in the record which this court
can consider touching the challenge of these
two jurors by the defendants for cause. In
REYNOLDS VS.. The U s., AS to 156, it was
decided by this court that in order to justify
the reversal of the judgment of the supreme
court of the territory of Utah for refusing to
allow a challenge TO a juror in a criminal
case on the ground that he had formed and
expressed an opinion to the issues to be